Monday, February 19, 2007

Notes on the Art Appropriation Symposium

As the last posting indicated, the College Art Association held a two-day symposium in NYC this last Friday and Saturday which included considerable discussion of the issues raised by the art appropriation movement, including the ways that movement has evolved in the last two decades or so. On Friday morning, Judge Pierre Leval and I had a public dialogue on the relevant copyright issues. First though there were presentations by three professors of art history: Lisa Pon ("Inappropriate? Copying in the Renaissance"), Johanna Burton ("The Reign of the Quotation -- Appropriation and Its Audience"), and Jaimey Hamilton ("From Appropriation to Postproduction").

The panel was chaired by Martha Buskirk and Virginia Rutledge. The session was taped, but permissions haven't been worked out. One thing seems evident: it is difficult to bridge the gap between how those in the art community who favor art appropriation and who see copyright as an inappropriate vehicle by which to address disputes over such copying, and Judge Leval's and my view: appropriation art should be judged by the same standards as all other uses, taking into account what the artist was trying to accomplish.

For me and I believe Judge Leval, fair use has done, on the whole, an admirable job of mediating between the two typical opposing forces in art appropriation: the artist whose work has been appropriated and the artist who does the appropriating. These disputes, it must be emphasized, are intra-mural, pitting one artist against another. Too often, copyright is described in the art community as an alien force joyfully stifling art. Historically, however, it is artists who sought copyright or similar protection for their works: it was artists who did the lobbying, and in the case of the 16th century Venetian privileges, paid for them. I am unaware of any instance where a sovereign or legislature granted copyright (or the like) against the wishes of artists. If there are tensions between art and copyright, let's locate the source of the tension where it belongs: in differences within the art community. The tension is not externally imposed by the legal community. Nor is such tension peculiar to the arts. Harold Bloom's "The Anxiety of Influence" is a good source for poetry. Law didn't create such tensions and it can't solve them other than on a case-by-case basis.

Some of the discussion revolved around whether such tensions fell out along the "fine art" versus "commercial art" distinction, but in Koons's case, it is unclear how such a distinction would be applied. Both Judge Leval and I emphasized that whatever the source, once matters get in to court (and few do, it should be observed), there is no special artists' exemption, and instead, the general principles of transformative use apply: the idea that judges shouldn't judge such disputes is a dangerous fallacy. Another fallacy, noted by Judge Leval, is that judges are judging art in doing so: not true, he noted, although he did state that some judges have stepped over the line and inappropriately done so.

We both agreed that judges should be instead deciding a fair use defense and that the ultimate decision whether a use is fair or not says nothing about the quality of the art on either side of the pleading. Appropriation art of the Sherry Levine copying of Walker Evans was met with great skepticism as fair use: making a conceptual point as an artist is, after all, different than making a transformative use in copyright, and I would say it was on this point that two groups: art historians favorable to art appropriation and non-partisan lawyers (that is those of us not representing anyone in such disputes), had and probably will always have the greatest trouble.

At the same time, Judge Leval agreed that while fair use was invented by judges for judges (in order to promote learning and creativity), too many judges have been hostile to it. Judge Leval was particularly critical of the Supreme Court's Sony decision (but not of the result). Rather than regarding all unconsented to uses as fair use, in order for fair use to have doctrinal coherence, it is preferable to instead to treat some uses as either not within the copyright owner's rights or as deminimis.

8 comments:

Artists both desire complete artistic freedom, and at the same time, they regard each of their works of art as a precious child to be protected from promiscuity and corruption.

If parents could put a monitoring device on their debutante daughters that could thus extend their supervisory control, then they probably would - whilst objecting in the strongest possible terms to their own parent's use upon themselves.

The boundary of an artist's control over their art stops at their door. Once published, private work belongs to the public, and only the truth remains inviolate - the art joins the fray of all artistic intercourse, and Madonna may get her moustache.

"Too often, copyright is described in the art community as an alien force joyfully stifling art"

Please be more circumspect when defining the “art community”. I urge you not to overlook the larger world of fine artists and illustrators who begin with a blank canvas, and create many derivatives from their own works throughout their artistic life.

This art community respects copyright and the protection it bestows to the integrity of an artist’s body of work. This art community, and the many publishers and businesses that license these works from the artists under mutual agreed terms, expect copyright to be honored.

In my view, your comment would have been more precise if worded along the lines of:

Too often, copyright is described by the appropriation-based, free-culture, and amateur user-generated content segments of society as an alien force joyfully stifling art.

Thanks, Cynthia. My remark about "too often" may be ambiguous, although I think we are on the same page. I doubt, though, that your characterization free-culture, and amateur user-generated content segments of society will be met with wide agreement.

What is interesting in your suggestion that judges and courts are competent in the adjudication of fair use as a defense in copyright cases involving the fine arts is the fact that in copyright jurisprudence different rules are fashioned for different media and few people, and few judges, are sufficiently trained in media sufficiently in order to apply those rules.

I have found that the ability of a judge to cogently analyze the differences of works or the commonality of segments of works or the impact of a “taking” from a work depends greatly on whether the judge knows the language of the medium in question. This was less of an issue when all judges shared education, shared a base level of learning in literature, music and visual art and when "art" was normalized. But that is no longer true. Many jurists can not read music; most have not taken an art history class; and, many, as evidenced by their writing, skipped out on their literature courses. In Jefferson's time, for example, all men and women of learning could read music and play some instrument. In Holmes' time, painting was entirely representational and posed little challenge in terms of understanding the artist's design and statement. Most jurists today lack the exposure to trends in modern art in order to relate to a Koonsian world. (Of course, all federal judges in New York City and those who are friends of Prof. Patry are exempted from these observations.)

Of all the arts, the fine visual arts are least commonly understood. This is completely by design on the part of the community that produces these works. For that reason, maybe, they do not deserve better treatment than the dreadful treatment this medium receives.

I'm concerned to see the suggestion that copyright bestows protection to the integrity of an artist’s body of work.

May I just point out that such integrity is a matter of truth, and a moral or human right.

You do not need to suspend artists' freedom and prohibit them from making copies or derivatives in order to protect this right. Such unethical imposition on human liberty was created for the commercial benefit of printers, not to prevent artists conversing or building upon each others' work.

Simply require that artists do not misrepresent other artists or misattribute derivatives, whether explicitly, or implicitly through context or omission, etc.

Either keep your art private and shown only to select artists under oath that they will not copy on pain of a hundred lashes. Or publish it, and let all artists enjoy their natural freedom to reply.

Society will gladly protect the integrity of your published work - without needing to prohibit copies or derivatives.

Thanks, Josh. Your comments raise an issue that troubled Judge Leval; namely that judges in making fair use determinations are making some sort of implied judgement on art. In literature, for example, a judge who finds one novel to infringe another is not saying the infringing novel is bad literature. But when the same thing occurs in an art case, some in the art world think the judge is making such a judgment. In literature there are also trends to take into account, like the blurring of fact and fiction.

Accepting Josh's remarks about the decline in a shared classical education, I would think that music presents a more difficult problem than visual works: the inability to read music, the temporal nature of it and the heavily reliance on paid experts has led to real problems.

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This is a personal blog, not a Google blog. It is about my book Moral Panics and the Copyright Wars, published by Oxford University Press. Please don't attribute anything in the blog or the book to Google, which employs me.